Mala and Others vs The State of Karnataka

A.V. Chandrashekara, J.—The present appeal is filed under Section 374 , Cr.P.C. challenging the judgment of conviction and sentence passed against this appellant in S.C. 162/95 which was pending on the file of Principal Sessions Judge, Mysuru. The learned judge has convicted the appellant herein for the offence punishable under Section 366 , I.P.C. and is sentenced to undergo RI for a period of 4 years and also to pay a fine of Rs. 2,000/-, in default, to undergo RI for a period of 3 months. The benefit of set-off to the appellant under Section 428 , Cr.P.C. is also given.

Initially this petitioner and one Meena-2nd accused had also been convicted for the above offence and both of them had been directed to undergo the punishment stated above. The matter was taken up in appeal before this Court and was disposed of on 27.8.2006 acquitting the 2nd appellant-Meena and reducing the sentence imposed upon this appellant from 4 years RI to one year RI and also increasing the fine imposed from Rs. 2,000/- to Rs. 25,000/- and in default, to undergo RI for one year. The judgment of this court on 27.8.2006 was carried to the Hon''ble apex court by this appellant in Crl. Appeal No. 85/07. The State did not choose to file any appeal against the order of acquittal of the 2nd accused-Meena. Thus judgment of acquittal of record accused has attained finality. Ultimately the appeal filed before the Hon''ble Apex Court came to be allowed on 1.9.2015, remanding the matter to this court to consider the appeal afresh after appreciating the entire evidence on record. Hence, the appeal is restored to its original number and is taken up for fresh consideration insofar as this appellant alone is concerned.

The facts leading to the filing of this appeal under Section 374 , Cr.P.C. by the 1st accused are as follows:

"a) Meena-2nd appellant who has been acquitted by the Hon''ble apex court, is the daughter-in-law of the 1st appellant. According to the prosecution case, 3rd accused-Tony against whom the case has been split, by the Trial Court is said to be the son of the 1st appellant. Nandini-CW3 in the charge sheet was aged about 13.5 years during the year 1994. She knew all the accused inclusive of this appellant since she was going to her grandfather''s house often and had developed acquaintance with these people.

b) The allegation against the accused is that they wanted to perform the marriage of Nandini with Tony and therefore, they abducted her on 8.11.1994 and took her to Mysuru bus stand and later on Tony alone took her to Bengaluru stating that her mother was seriously ill and was hospitalized at Bengaluru. She accompanied the 3rd accused since she did not have any fear because of acquaintance. In spite of having reached Bengaluru, she was not taken to any hospital and was confined in a house. The next day the mother of the appellant came there and threatened her that her marriage would be performed with Tony and she should be prepared. In spite of protest, accused went ahead with purchases of several articles in connection with the marriage.

c) In a mean time missing complaint came to be lodged by the mother of Nandini on 8.11.1994 stating that she did not return from the school. Her husband was not in town on that day and returned only on 9.11.1994. Shivamma-mother of CW-3 told him about Nandini being not seen and they made all efforts to trace her whereabouts. In spite of efforts since they could not trace her whereabout and, he chose to lodge first information on 11.11.1994 at 11.35 a.m. on the basis of which a case came to be registered in Crime No. 252/94 for the offence punishable under Section 366 , I.P.C.

d) The PSI after registering the case, took up investigation and it was disclosed to him that CW-5, Guruswamy had seen the victim in the company of all these accused on 8.11.1994 in Mysuru. After credible information, the PSI went to Bengaluru and came to know that all the three accused had gone to Mysuru bus stand and Tony had taken Nandini in a bust to Bengaluru.

e) In order to bring home the guilt of the accused, police have cited as many as 16 witnesses out of whom 8 witnesses have been examined. The victim girl is examined as PW3 and her parents have been examined as PW1 and PW2 respectively CW-5, Gopalswamy who is stated to have seen the victim girl in the company of the accused on 8.11.1994 at Mysuru, is not examined on the ground that he was dead."

The case of the prosecution is that PW-6, Babu was known to Tony and Tony came near his house and parked the bicycle of Nandini and Nandini was present along with him. The inspector who registered the case and conducted investigation is examined as PW-8.

During the pendency of the trial, Tony-3rd accused did not appear before the court and hence non-bailable warrant was issued against him. In spite of taking coercive steps, he could not be secured and hence, the case is split up against him and sent to long pending register.

Both the accused were examined under Section 313 , Cr.P.C. Their defence is one of total denial of all the allegations. After hearing arguments advanced by the learned counsel for the accused and the learned PP, the principal sessions judge chose to convict the accused to undergo RI for a period of 4 years and to pay a fine of Rs. 2,000/- for the offence punishable under Section 366 , I.P.C. It is this judgment which was called in question by both the appellants, i.e. accused Nos. 1 and 2.

As already stated, this court has chosen to acquit Meena-2nd appellant and the prosecution has not chosen to file any appeal against the judgment of acquittal. As such the appeal remains for all practical purposes insofar the 1st appellant-1st accused is concerned.

Learned counsel for the appellant vehemently argued that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. It is argued that an important witness, Guruswamy is no more and in the light of the same, there is no corroboration to the version of the victim. She has argued that inherent inconsistencies in her evidence and the evidence of PW-1 and PW-2 have not been considered by the trial court and the trial court has ignored the serious and glaring inconsistencies in the case of the prosecution. She has further argued that the trial court has not properly analyzed the evidence in right perspective, and that the evidence of PW3 is not assessed in the light of serious inconsistencies found in the evidence of PW-1 and PW-2. Therefore, she has requested the court to allow the appeal by extending the benefit of doubt.

Learned counsel has further argued that when this court has acquitted the 2nd appellant-2nd accused on the basis of the evidence available on record, the same evidence is equally applicable to the 1st accused also and a separate parameter cannot be made applicable to the present accused.

Per contra, learned HCGP, Mr. Nazrulla Khan has vehemently supported the judgment of conviction and sentence passed by the trial court. He has argued that the evidence of PW-1 and PW-2 will have to be read as a whole and if some inconsistencies found here and there, the same cannot be blown out of proportion. He has argued that PW-3, a minor, has withstood the rigor of cross-examination and there is nothing to disbelieve her version. Her version has inspired confidence in the mind of the trial court and there is no material placed on record to take a different view from the one taken by the trial court. Hence he has requested the court to confirm the judgment of the trial court.

"1. Whether the trial Court is justified in convicting the accused under Section 366 of IPC?

Whether the sentence of imprisonment imposed on the appellants is justified?

Whether interference is called for or to what extent?"

Reasons:

Point No. 1:

When the matter was taken up before this Court, accused No. 2 was acquitted and as against the said judgment of acquittal passed by this Court on 27.08.2006, the State has not filed any appeal. Therefore, the judgment of acquittal passed by this Court has become final.

While acquitting accused No. 2, this Court has held that the evidence of PW.3 no way discloses the presence and participation of accused No. 2 in the episode of kidnap. It is further held that accused No. 1 alone represented that mother of PW.3 had been hospitalized and took PW.3 to the house of accused No. 3 to be taken to Bengaluru. The evidence of PW.3 is fully credible. Admittedly, PW. 3 was a minor when the offence of abduction took place. She had completed 18 years when her evidence was recorded. It is submitted by the learned counsel for the petitioner that PW.3 is a tutored witness and therefore, her evidence cannot be said to be much credence. Hence requests this Court to allow the appeal by extending the benefit of doubt.

What proof beyond reasonable doubt has been eloquently explained by the Hon''ble Supreme Court in the case of State of U.P. Vs. Krishna Gopal and Another, . Relevant paragraph is 13 of the said decision and is extracted below:

"13. There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical-evidence-which Sri Prithviraj characterised as merely conjectural answers-to the other categoric answer by the very medical-witnesses themselves. Sri. Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical-witnesses to exclude the eye-witnesses'' account which had to be rested independently and not treated as the "variable" keeping the medical-evidence as the "constant".

It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial-process. Eye witnesses'' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amount to ''proof is an exercise particular to each case. Referring to of probability amounts to ''proof is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See: "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342).

"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the dependant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

Doubts would be reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over emotional response. Doubts may be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.

The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective-element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common-sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused-persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."

Whether the evidence of PW.3 inspires confidence of the Court to acquit accused No. 1 for the offence punishable under Section 366 of IPC, is the question. PW.3 - Nandini has given graphic details the manner in which she was abducted by accused No. 3. Even before regular case was registered for the offence punishable under Section 366 of IPC, the mother of Nandini had lodged a missing compliant on 8.11.1994. Therefore, delay in lodging the complaint by the father of Nandini does not assume much importance. PW.3 was taken by accused No. 3 in a KSRTC bus to Bengaluru and confined her in a house and after sometime, accused Nos. 1 and 2 came there. It is further specifically deposed by PW.3 that accused No. 1 insisted her to marry her son. Of course, there is absolutely no evidence to seriously dispute the relationship of the mother and son between accused Nos. 1 and 3. On the complaint lodged by the mother of Nandini-PW.3, the police registered a case and traced the girl in Bengaluru and brought her in a car and also traced accused Nos. 1 and 3. This aspect of the matter has not seriously disputed while cross-examining the material evidence.

In fact, PW.3 was deposed that she was taken by Tony to Bengaluru. She had full confidence in Tony and hence she did not attempt to get out of his clutches. He had been fully assumed that she was being taken to Bengaluru in order to enable to see her mother. It is further deposed that at no point of time the accused took her to hospital and he confined her in a house. In spite of lengthy cross-examination of PW.3, nothing useful has been elicited from the mouth of PW.3 to discard her evidence. The trial Court is rightly justified in placing reliance on the evidence of PW.3 as credible witness. Therefore, the trial Court is justified in convicting accused/appellant for the offence punishable under Section 366 of IPC. Hence point No. 1 is answered in the affirmative.

Point No. 2:

The trial Court has convicted the accused to undergo R.I. for four years and also to pay fine of Rs. 2,000/- each, in default, to undergo simple imprisonment for three months.

Heard the learned counsel for the complainant and the learned HCGP appearing for the State.

Learned HCGP vehemently argued that the offence was committed on a minor girl and abducted her to perform the marriage with the son of accused No. 1 and therefore, stringent punishment already imposed by the trial Court will have to be upheld. He has argued that deterrent punishment must be imposed in a case of this nature to teach other persons who would involve in such kind of offence.

Per contra, learned counsel for the appellant has relied upon a medical certificate of the accused issued by Dr. M.A. Sait, who is running a private clinic under the name and style ''Sait Clinic & Pathology Lab'' in Mysuru. He has certified that Smt. Mala is aged about 65 years and she is suffering from diabetes, ischemic heart disease and peripheral neuritis. He has further certified that she has been under his treatment for the past five years. Learned counsel for the appellant has further submitted that the appellant is a lady, aged about 65 years and she is eking her livelihood by stitching clothes of the children and that she has nobody to look after. Further, the learned counsel for the appellant has submitted that she has undergone trauma due to criminal cases for the past 20 years and she had moved the Apex Court challenging the judgment passed by this Court.

Admittedly, the appellant was aged 45 years when the offence took place. The accused has undergone trauma in this case for the past 20 years. She is suffering from certain diseases and she has nobody who would look after her. Taking into consideration the background of the appellant and her present health and financial condition, lenient approach is to be adopted in this case.

Maximum sentence of imprisonment can extend up to 10 years for the offence punishable under Section 366 of IPC. The trial Court has imposed four years of imprisonment. Twenty years have already gone by and sufficient lenience is required in the present case. She was injudicial custody from 1.11.94 to 1.12.94 and 18.7.2001 to 6.8.2001 and she had surrendered before this Court after filing the appeal before the Hon''ble Supreme Court on 2.1.2007 and she was released on 22.1.2007. Thus, she was injudicial custody for a period of 60 days.

Taking into consideration the present age of the accused and the mental trauma undergone by her all these years and the ailment with which she is suffering, ends of justice would be met by treating the punishment already undergone by her as sentence of imprisonment. To this extent, judgment of sentence of imprisonment imposed on this appellant is to be modified by upholding the judgment of conviction.

ORDER

Appeal is allowed in part, confirming the judgment of conviction passed under Section 366 of IPC and the number of days of judicial custody already undergone by her in this case is treated as sentence of imprisonment. She shall deposit a fine imposed on her within a period of 45 (Forty Five) days from today. Learned Sessions Judge to take steps to collect the fine imposed, if the same is not paid within 45 days from today.